Former Egyptian president Hosni Mubarak, Cairo Criminal Court, Cairo, June 2, 2012. STR/EPA/Corbis
A Need for Justice
August 06, 2012
The incoherent and problematic verdicts in the
case against former President Hosni Mubarak and his sons and associates are an
important measure of Egypt’s troubled and chaotic transition. How a nation in
transition accounts for past injustices is a telling indicator of the overall
health of transition. Egypt has changed in tangible and consequential ways.
Yet, the initial promise and the sense of transformational possibility that
marked the fall of Mubarak is now something of a distant memory. The Mubarak
trial encapsulates many of the flaws that have undermined the prospects for
fundamental change in Egypt.
In the prosecution’s central case related to the
violent crackdown against protesters, Mubarak and his former minister of Interior, Habib El-Adly, were both
found guilty in relation to those killings, but only as a result of their
negligence in failing to stop the crackdown. Senior operational decision-makers
within the Ministry of Interior, however, were exonerated for their roles and
found not guilty. These verdicts staked out an implausible ground, shrinking
the scope and nature of culpability while leaving unaddressed the fundamental
question of how the decision to use lethal force against protesters was made
and who made that fateful decision. In keeping with the tale told by the
verdicts, it seems no one in all of Egypt was actually responsible.
This outcome was reflective of an ill-conceived
process and a lack of fidelity to the possibility of justice. Security
institutions chose not to cooperate with investigators and prosecutors—depriving
them of irreplaceable evidence—and thus remained free to act with impunity.
Thorough-going transitional justice has been preempted
by a reconfigured variant of the old regime, which has moved to consolidate its
power. The modalities of transitional justice have consequently been tightly
harnessed to this internal re-ordering. The absence of accountability is a sign
of the failures of political change.
The struggle to establish accountability and
come to terms with Egypt’s repressive past will almost certainly carry on. Its
ultimate success or failure will be tied to the political fortunes of those
segments of society that continue to push for a program of genuine reform. If
those forces are eventually successful, then transitional justice may be
deferred, but it will not be abandoned. Documenting the reality, mechanics, and
legacy of repression may take years, decades even, as other transitioning
societies have demonstrated. However, the very existence of a continued push to
end impunity, establish mechanisms for accountability, and address the rights
of victims is a critical facet of any effort to create a more open and responsive
political culture and lay the foundations for a sustainable political process.
While the decision to prosecute Mubarak is an
important one, it has, as things turned out, served as a prophylactic to
change, too. The soap opera of the Mubarak trial—with the former president
wheeled in on a gurney and confined in a courtroom cage with his two
once-powerful sons, Gamal and Alaa—has obscured the continuity of Egypt’s
post-revolution military rulers and the omnipresent state bureaucracy with the
former Mubarak regime. By appearing to heed the demands of Tahrir for justice,
the trial undoubtedly slowed the momentum for revolutionary change—including
broader efforts to examine the legacy of authoritarian rule.
The outcome of the Mubarak trial was a
reflection of a reorganized and revitalized old regime that has become
increasingly confident in asserting its authority and hindering pathways to
accountability and reform. The fragmentation of the Egyptian political class is
partly responsible for this unfortunate state of affairs, which has facilitated
the retrenchment of military rule. With the transition period dominated by the
struggle for political power, the animating rationales that sustained the
Egyptian uprising have largely been put aside.
To the extent that transitional justice
modalities have been brought to bear, they have almost exclusively hewed
to the political imperatives of
the Supreme Council of the Armed Forces (SCAF). The pattern points to the
military’s efforts to diminish rivals while ensuring a stable but minimalist
transition. Successful prosecutions have largely been limited to the business
elite that grew up around Gamal Mubarak and the tight inner circle of advisors
surrounding the former president. There has been a lack of serious vetting within
the Ministry of Interior to bar police officials responsible for past abuses
from continued participation in government service. There has also been an
unwillingness to hold police accountable for the deaths of protesters—even the
senior leaders charged and prosecuted alongside the former president. These
omissions have similarly played an important role in cementing a hierarchy of
power that has placed SCAF in a position of clear superiority to the police
while limiting any possibilities for retaliation from within that ministry.
Prosecutions by their very nature are selective,
and may raise rule of law quandaries. They may exacerbate the polarization of a
divided society. They are also time-consuming and resource-intensive. They
cannot, as a matter of practicality, shoulder the entire burden of transitional
justice. There should be other elements, such as the convening of truth
commissions and victims’ rights processes. Nonetheless, the initial decision to
prosecute Mubarak was important and correct. Accountability remains a core goal
of transitional justice. A methodical investigation coupled with the scrupulous
application of existing Egyptian law would have been extremely laudable first
steps in the effort to lay the foundations for a rule of law culture and would
have had cascading effects on political reform.
There is a lack of consensus in Egyptian society
about the meaning of the revolution. Nearly half of Egyptian voters cast
ballots for a man who served as Mubarak’s last prime minister. Certain segments
of the population are in denial about January 25, allowing some Egyptians to
attribute regime-perpetrated violence to outside infiltrators and to the
protest leaders themselves.
The fate of one man and of his close associates
pales in comparison with the enormous challenges facing Egypt. But prosecuting
Mubarak, and producing the beginnings of an unimpeachable historical record of
abuse, repression, and
criminality, would have created a genuine and necessary basis upon which
national reconciliation could proceed.
The struggle for power is
not over. Nor is the pressing need to expand the boundaries of inquiry to
include the broader historical framework in which the Mubarak regime was simply
the most recent stage. The normalization of repression and its systemization
over decades must be acknowledged through prosecutions and other mechanisms of
transitional justice if Egypt is ever to fulfill the promise of January 25.
Expedient amnesia will further the possibility for the entrenchment of authoritarianism,
which will in turn undermine the prospects for democracy and kill the chance of
realizing liberal political goals.
Wahid Hanna is a fellow at The Century Foundation. He focuses on international
security, human rights, post-conflict justice, and U.S. foreign policy in the
Middle East. He is a regular contributor to the Atlantic and Foreign Policy’s Middle East Channel, and can be followed on
Twitter at @mwhanna1.